Opinion
No. 2 CA-CR 2020-0186-PR
04-12-2021
THE STATE OF ARIZONA, Respondent, v. ERIC ADAM MORENO, Petitioner.
COUNSEL Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Bureau Chief - Criminal Appeals, Florence Counsel for Respondent Harriette P. Levitt, Tucson Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Pinal County
No. S1100CR201202225
The Honorable Lawrence M. Wharton, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL Kent P. Volkmer, Pinal County Attorney
By Thomas C. McDermott, Bureau Chief - Criminal Appeals, Florence
Counsel for Respondent Harriette P. Levitt, Tucson
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred. EPPICH, Presiding Judge:
¶1 Eric Moreno seeks review of the trial court's order summarily dismissing his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Moreno has not sustained his burden of establishing such abuse here.
Effective January 1, 2020, our supreme court amended the post-conviction relief rules. Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). The amendments apply to all cases pending on the effective date unless a court determines that "applying the rule or amendment would be infeasible or work an injustice." Id. "Because it is neither infeasible nor works an injustice here, we cite to and apply the current version of the rules." State v. Mendoza, 249 Ariz. 180, n.1 (App. 2020).
¶2 Pursuant to a plea agreement in 2013, Moreno was convicted of three counts of first-degree burglary, and the trial court sentenced him to five years' imprisonment to be followed by concurrent seven-year terms of probation. The state filed a petition to revoke Moreno's probation in January 2019, and the court reinstated him on probation following his admission that he had violated the terms of his probation. The state filed a second petition to revoke probation in March 2019. At the conclusion of a contested violation hearing, the court found Moreno had violated two of the terms of his probation. The court revoked Moreno's probation and sentenced him to five years' imprisonment in August 2019.
Although the July 11, 2019, minute entry of the violation hearing correctly shows it was a contested hearing, the August 22, 2019, sentencing minute entry mistakenly states Moreno admitted to the probation violations.
¶3 At sentencing, the trial court informed Moreno, "So, having found you to be in violation of your probation grant and it was pursuant to a contested hearing. So you're going to have appellate rights." The record also shows that Moreno was provided with a notice of rights after conviction ("the notice"), which expressly informed him of his right to appeal, that he must file a notice of appeal "within 20 days of the entry of judgment and sentence," and that his right to appeal would be lost if the notice of appeal is not timely filed. The notice also explained that he should contact a lawyer to handle his appeal, and included instructions on how to do so. However, Moreno refused to sign the form notice, as demonstrated by the words, "Refused to sign" on the signature line at the bottom of that document. The August 2019 sentencing minute entry confirmed that Moreno was "advised concerning rights of appeal and written notice of those rights is provided."
The minute entry, however, mistakenly stated, "Notice of Rights of Review After Conviction, signed by the Defendant."
¶4 In November 2019, Moreno filed a pro se notice of post-conviction relief. Appointed counsel then filed a Rule 32 petition, seeking leave to file a delayed notice of appeal. Citing Rule 27, Ariz. R. Crim. P., Moreno asserted his failure to file a timely notice of appeal was not his fault "because the Court did not properly inform him of his appellate rights and his attorney did not assert his right to appeal on his behalf." Moreno argued that the court failed to "personally" advise him of his right to appeal, or to inform him that he was required to file a written notice of appeal within twenty days of sentencing. Acknowledging that he had refused to sign the notice, he argued that "there is no evidence that he actually took the form and read it," asserting, therefore, "there is no conclusive evidence that [he] was actually advised of his constitutional right to appeal his probation revocation."
Although Moreno did not refer to Rule 32.1(f) in his petition below, nor does he do so on review, we infer he is requesting relief pursuant to that rule. --------
¶5 The trial court summarily dismissed Moreno's petition, finding it had complied with the requirements of Rule 26.11, Ariz. R. Crim. P. Specifically, the court stated it had advised Moreno of his right to appeal and had provided him with the written "Notice of Rights After Conviction" form which, the court noted, Moreno had refused to sign. This petition for review followed.
¶6 Under Rule 32.1(f), a defendant is eligible to file a delayed appeal if the defendant demonstrates that "the failure to timely file a notice of appeal was not the defendant's fault." On review, Moreno reasserts that his failure to file a timely notice of appeal was not his fault "because the Court did not properly inform him of his appellate rights" or how to assert them, and that "his attorney did not assert his right to appeal on his behalf." Moreno acknowledges that "although [he] was handed a form advising him of his rights he refused to sign it," and asserts that the record does not establish whether he retained a copy of that notice. Moreno also maintains that, because the trial court was aware of his "cognitive deficiencies arising from his protracted drug use and mental illness," it should have ensured he was advised of his right to appeal.
¶7 Rule 26.11(a)(1)(A), (C), requires a sentencing court to inform the defendant of the right to appeal and to inform the defendant that the failure to timely appeal will result in the loss of that right. In addition, Rule 26.11(b) requires the court to provide a defendant with written notice of the rights in subsection (a) and the procedures the defendant must follow to exercise those rights, stating that "[t]he record must show affirmatively the defendant's receipt of the notice."
¶8 As Moreno acknowledges on review, the trial court did inform him at sentencing that he was "going to have appellate rights." While we acknowledge the brevity of the court's oral advisement, it is neither determinative nor persuasive of our decision here. We cannot ignore the undisputed fact that the court also provided Moreno with a detailed written notice of his right to appeal, which he refused to sign, but which nonetheless identified all the rights of which he now argues he was not advised. Notably, Moreno has not provided any evidence, in the form of an affidavit or otherwise, stating he did not understand his appellate rights, a fact which is particularly relevant in light of his unexplained refusal to sign the written notice the court provided, which explained those very rights; nor has he informed this court whether he retained a copy of the unsigned notice.
¶9 Moreover, despite his oblique assertion that "his attorney did not assert his right to appeal on his behalf," Moreno has not asserted that counsel did not discuss his appeal rights with him or that he thought counsel had filed a notice of appeal on his behalf, but failed to do so. See Ariz. Sup. Ct. Order R-17-0002, at 171-72 (Aug. 31, 2017) (comment to former Rule 32.1(f), explaining good cause for defendant's failure to file timely appeal includes situation where trial court failed to properly inform defendant of appeal rights, and situation where defendant believed counsel timely filed notice of appeal but counsel failed to do so). Nor has Moreno asserted that he actually intended to appeal the trial court's disposition order during the relevant time period. Cf. State v. Poblete, 227 Ariz. 537, ¶ 7 (App. 2011) (later regret for having failed to challenge conviction not cognizable claim under Rule 32.1(f)).
¶10 For all these reasons, we conclude Moreno has not sustained his burden to obtain relief under Rule 32.1(f), and we thus find the trial court did not abuse its discretion by summarily dismissing his petition. See State v. Banda, 232 Ariz. 582, n.2 (App. 2013) ("We can affirm the trial court's ruling for any reason supported by the record.").
¶11 Accordingly, we grant review but deny relief.